23 Or. 400 | Or. | 1893
This was an action to recover damages, brought by the plaintiff against the defendant in a justice’s court. The answer, after making the usual denials, sets up a separate defense, which was stricken out on motion, whereupon the cause proceeded to trial upon the issues
The only questions now presented are: First, did the court err in overruling defendant’s motion for a judgment on the pleadings, and refusing to enter judgment for want of a reply; and, second, did the court err in sustaining and allowing plaintiff’s motion for nonsuit. As already disclosed, the failure of the plaintiff to file a reply to the separate defense was not because he confessed or admitted it, but because of the ruling of the court upon a question of law. Upon the questions presented, both the justice’s and circuit court erred, which prevented the plaintiff from prosecuting his action, because the issues were not made up. When the cause was remanded, it was to be tried de novo; it was put back in the same position that it was before the mistake. The case stood then, owing to the error in the ruling, without a reply. There had been a mistake, as this court held, but when the judgment was reversed and the cause remanded, it stood on the docket as though no proceedings had been had therein. It was there precisely for trial de novo as it came from the justice’s court, and the plaintiff could either take a nonsuit or take the consequences of any further proceedings.
It was said in Bowles v. Doble, 11 Or. 480 (5 Pac. Rep. 918), that a motion for judgment on the pleadings was not in harmony with the spirit of the Code, and, as a con